Laurino v. United States Postal Service

Opinion

MARICELA LAURINO, et al., No. 1:18-cv-00636-NONE-SAB Plaintiffs, v. ORDER DENYING MOTION FOR ADVERSE INFERENCE WITHOUT UNITED STATES OF AMERICA, PREJUDICE AND DENYING MOTION FOR TERMINATING SANCTIONS Defendant. (Doc. Nos. 54, 55, 58)

The central dispute in the case is whether the United States (“defendant”) is liable for the wrongful death of Manuel Jurado (“Jurado”), who was riding his motorcycle when he was involved in an accident with a US Postal Service vehicle. (See generally Doc. No. 1.) Jurado died as a result of the accident. (Id. ¶ 2.) Jurado had two sets of children from his first and second wives (the “Laurino Plaintiffs” and the “Jurado Plaintiffs,” respectively). Both sets of children are plaintiffs in this consolidated wrongful death action. (See Doc. No. 54 at 2.) The extended family also was involved in a probate dispute after Jurado’s death. (See Scarborough Decl. (Doc. No. 54) Ex. 8 (docket sheet reflecting January 14, 2019 Petition for Revocation of Probate of Purported Will).) In the context of that dispute, the Laurino Plaintiffs submitted a handwritten document dated May 21, 2016, asserting that the document was the decedent’s will. (See id. Ex. 1 (Marisela Laurino Dep.) at 60; id. Ex. 5 (order and related documents from probate court).) The May 21, 2016 document paints (in detail) decedent’s relationship with the Jurado Plaintiffs in a negative light and his relationship with the Laurino Plaintiffs in a positive light. (Id. Ex. 6.) The Jurado Plaintiffs challenged the validity of this document in probate court and the parties eventually settled the matter. (See generally id. Ex. 8.) The May 21, 2016 document was produced in discovery in this case. Initially, the Laurino Plaintiffs all testified at deposition that the document was signed by their father. (Id. Ex. 1 (Marisela Dep.) at 62; id. Ex. 2 (Vivian Dep.) at 40; id. Ex. 3 (Irma Dep.) at 55–56; id. Ex. 4 (Yvette Dep.) 57, 60.) Several Jurado Plaintiffs disagreed and testified that the document was not in their father’s handwriting. (Id. Ex. 10 (Patricia Dep.) at 53–54, 55; id. Ex. 11 (Joel Dep.) at 46–47.) Once questions about the May 21, 2016 document arose, the United States followed up with additional discovery requests aimed at the Laurino Plaintiffs (id. ¶ 14 & Ex. 13), who objected and invoked the Fifth Amendment (id. Exs. 14–17). Two motions to compel followed. (Doc. Nos. 29, 32.) One was withdrawn, but another was ruled upon by the assigned magistrate judge, who required the Laurino Plaintiffs to produce handwriting exemplars. (See Doc. No. 33.) Defendant then hired a handwriting expert who concluded that it was more probable than not that the handwriting on the May 21, 2016 document was not Jurado’s and that there were reasons to believe the signature on the document was not his either. (Scarborough Decl. Ex. 13.) Thereafter, defendant filed the motion now pending before the undersigned, which requests: (1) adverse inference determinations that the May 21, 2016 document discussed above was not written by decedent and that the Laurino Plaintiffs falsely testified concerning the handwriting in this document; (2) terminating sanctions against the Laurino Plaintiffs. (Doc. No. 54.) ///// ///// ///// A. Request for Adverse Inference Determinations As mentioned, defendant is asking the court to make adverse inference determinations that: (a) the May 21, 2016 document was not written by decedent and (b) that the Laurino Plaintiffs falsely testified concerning the handwriting. Here, if found appropriate, such an inference would be made in the face of the Laurino Plaintiffs’ invocation of their Fifth Amendment privilege against self-incrimination. The Ninth Circuit provides that “no negative inference can be drawn against a civil litigant’s assertion of his privilege against self- incrimination unless there is a substantial need for the information and there is not another less burdensome way of obtaining that information.” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1265 (9th Cir. 2000). Further, the court must determine whether the value of presenting the evidence is substantially outweighed by the danger of unfair prejudice to the party asserting the privilege, and the inference may be drawn only when there is independent evidence of the fact about which the party refuses to testify. Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 911– 12 (9th Cir. 2008). In sum, there must be: (1) a substantial need; (2) no less burdensome way of obtaining the information; (3) evidentiary value that substantially outweighs the danger of unfair prejudice to the party asserting the Fifth Amendment; and (4) independent evidence of the fact that the party refuses to testify about. As an example, in Nationwide, in the context of a dispute over a life insurance policy, the Ninth Circuit affirmed a district court’s decision to draw an adverse inference from a wife’s refusal to testify about her own involvement in her husband’s murder. Id. at 912–13. The Ninth Circuit agreed that there was substantial need for the testimony because it “went to the central question in the case”: whether she asked another person to murder her husband. Id. at 912. There was also ample independent evidence to support the adverse inference the district court eventually drew (i.e., that the wife was involved in the murder), including evidence that the wife was having an affair with the murderer. Id. at 912–13. Here, the United States argues that the evidence the Laurino Plaintiffs are now withholding (given their invocation of their rights under the Fifth Amendment) is important to the government’s defense case because that evidence is relevant on the issue of damages. The United States advances two alternative uses for the document to demonstrate that it has a “substantial need” for the information. On the one hand, the government contends that, assuming the May 21, 2016 document is a valid will, the will may be admissible because it speaks to Jurado’s state of mind concerning the relative closeness of his relationship with the two groups of Plaintiffs. (See Doc. No. 54-1 at 7.) Among other things, the will presumably would then support a finding that Jurado was not close with the Jurado Plaintiffs, which conflicts with what the Jurado Plaintiffs contend in this action. (See id.) Alternatively, if the May 21, 2016 document was not written by Jurado, the United States asserts that it could have used the evidence to demonstrate that one or more of the Laurino Plaintiffs knowingly submitted an invalid document to the probate court to obtain Jurado’s assets after his death, and that all four Laurino Plaintiffs testified falsely about the document at deposition in this case. (Id. at 7–8.) According to the United States, determining whether the will is valid is the only way to resolve the conflicting evidence. (See id.) The United States’ arguments roughly track the reasoning offered by the magistrate judge in support of the finding that the United States required additional time to inquire into the validity of the May 21, 2016 document because the document is “highly relevant to the Defendant’s ability to defend in this action, particularly as to amount of damages.” (Doc. No. 28 at 11.) The magistrate judge further found: The May 21 Letter contains statements that present the Decedent’s relationship with the Jurado Plaintiffs in a negative light. The content of the letters, as well as the dispute over whether the Decedent wrote the letters, are relevant for various reasons. First, if the Laurino Plaintiffs’ testimony that the letter was written by the Decedent is accurate, the sentiments contained in the letter directly relate to the Jurado Plaintiffs’ claims and the amount of damages they would be entitled to recover in this wrongful death action. Second, given the Jurado Plaintiffs’ testimony that the letters were not the Decedent’s handwriting, if the letters were in fact written by the Decedent, such fact is relevant to impeach the Jurado Plaintiffs testimony that the Decedent did not write the letters. Third, if the Jurado Plaintiffs are correct that the handwriting does not belong to the Decedent, it is relevant to impeaching the Laurino Plaintiffs regarding the authenticity of the letters, and perhaps, may raise the possibility that the Laurino Plaintiffs committed perjury. (Id. at 11–12.) But that reasoning did not take into consideration, because it was not required to, whether the information sought in discovery would ultimately be admissible at the trial of this action. In contrast, the adverse inference inquiry appears to require that the court consider admissibility. The Ninth Circuit has described one of the steps in the adverse inference inquiry as follows: the court must examine whether the “value of presenting such evidence [i]s substantially outweighed by the danger of unfair prejudice that drawing the adverse inference on that question would have” on the party claiming the Fifth Amendment privilege. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000) (emphasis added). In Doe, the Ninth Circuit specifically noted that the adverse inference inquiry requires “a case-by-case analysis with a balancing test which weighs the need for the information being sought (and consequently its admissibility at trial) against the afforded constitutional protections.” Id. at 1267 (emphasis added). It is important to focus carefully on how the government asserts that it would use the evidence in question under the “will is valid” scenario. Assuming that evidence the Laurino Plaintiffs are withholding (due to their invocation of their rights under the Fifth Amendment) could establish the validity of the May 21, 2016 document as a will, the government contends that the document “would not be offered to prove the truth of the many factual matters asserted in it, such as . . . whether the allegation of sexual abuse made in the will actually happened.” (Doc. No. 58 at 4.) Rather the government claims it would offer the evidence “to show Jurado’s state of mind concerning the relationship he had with the various plaintiffs.” (Id. at 5.) Assuming this limited hypothetical proposed use, the Laurino Plaintiffs argue that the evidence is irrelevant. They claim that the decedent’s state of mind is not relevant because what really matters in the damages determination here is how the living children felt about their father, not how he felt about them. (Doc. No. 55 at 2–3.) Although the Laurino Plaintiffs do not cite any authority for this proposition, the very nature of a wrongful death suit suggests that the government’s planned use of the evidence would be of limited value in resolving any relevant issue presented in this case. ///// The United States cites the decision in Krouse v. Graham, 19 Cal. 3d 59, 68 (1977), for the proposition that the will, if authentic, is relevant evidence of “the closeness of the family unit, the warmth of feeling between family members, and the character of the deceased as kind and attentive or kind and loving.” Other cases have built upon Krouse to confirm that evidence from a wide circle of acquaintances may be relevant to proving the warmth of feeling between family members and the character of the decedent. See Cederblom v. United States, No. 05CV1551 J (BLM), 2006 WL 8455438, at *3 (S.D. Cal. Mar. 14, 2006). But none of these cases undermine the central premise that wrongful death damages are designed to compensate the losses of the living. See Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1264 (2006) (“A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent's financial support, services, training and advice, and (2) the pecuniary value of the decedent’s society and companionship—but he may not recover for such things as the grief or sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental value of the loss.”); see also Cal. Code. Civ. P. § 377.61 (allowing a wrongful death plaintiff to recover “damages . . . that, under all the circumstances of the case, may be just, but may not include damages recoverable under [a survival action pursuant to] Section 377.34). In light of the authorities cited above, any evidence of Jurado’s state of mind would only be admissible to the extent it supports (or undermines) the claimed losses of the living, as established by the Plaintiff groups. The only factual question under Krouse to which the will would arguably be relevant is how close those family relationships actually were. The United States, however, cannot establish the answer to that question solely through Jurado’s state of mind, i.e. through admission of the will, because the terms of a will do not establish the losses of the living in a wrongful death claim.1 Even assuming the May 21, 2016 document and any testimonial evidence the Laurino Plaintiffs are withholding about that document were to be ///// 1 For instance, a will might disinherit a spouse or child—for whatever purpose or reason—who was nonetheless supported financially and emotionally during the decedent’s life. Such financial and emotional support during life could form the basis for damages in a wrongful death suit, admissible as proof related to the closeness of the family relationships,2 the court is not persuaded that the government has demonstrated either a substantial need for such evidence, or that there are not less burdensome ways to prove the real nature of the various familial relationships at issue. For one thing, third parties can be called testify as to the closeness of the family relationships at issue. On the present record, nothing suggests such an approach would prove insufficient to establish (or challenge) plaintiffs’ loss-of-society damages.3 For these reasons, the government’s request for an adverse inference that the May 21, 2016 document was not authored by decedent will be denied without prejudice to a renewed request at trial should further development of the record demonstrate that the relevant factors warrant a different ruling. On the flipside, assuming that the evidence the Laurino Plaintiffs are withholding (by invocation of their Fifth Amendment privilege) could be used to establish that the May 21, 2016 document is not a valid will, such evidence would be inadmissible to establish Jurado’s state of mind because the letter was not authored by him.4 Under this “will is invalid” scenario, the government still seeks an adverse inference determination that the Laurino Plaintiffs falsely

2 Although there is no directly relevant hearsay exception, the United States claims that the documents would not be used for a hearsay purpose and therefore that the hearsay bar does not apply at all. (Doc. No. 58 at 4–5.)

3 The court is also mindful that the very use suggested by the government under its “will is valid” scenario runs contrary to the adverse inference determination they request of the court, namely a finding that the document was not written by decedent. It appears that the government is simply posing this hypothetical use to underscore that the will is important to its case. But it is not at all clear that the adverse inference caselaw allows the court to bend reality in such a way when determining whether there is a “substantial need” for the information. Crucially, an “adverse inference can only be drawn when independent evidence exists of the fact to which the party refuses to answer.” Glanzer, 232 F.3d at 1264. The government cannot have its cake and eat it, too in this regard. In other words, it cannot force the court to assume the will is valid to establish substantial need, while at the same offering evidence it insists demonstrates that the will is not valid.

4 The United States points out, correctly, that the will could be subject to judicial notice because it was filed in probate court. (Doc. No. 58 at 4 (citing In re Tower Park Properties, LLC, 803 F.3d 450, 452 n.2 (9th Cir. 2015)).) But judicial notice would permit this court only to take notice that the will was filed in probate court and of the content of the document; judicial notice testified about the provenance of the will. In relation to this request, the inference the government asks the court to draw is not directly related to the will itself. Rather, it is simply that the Laurino Plaintiff’s gave false testimony. Such false testimony would have little to no direct bearing on the loss-of-society damages case, but (obviously) might bear on the Laurino Plaintiff’s credibility should they elect to testify at the trial of this action. Because it is not clear whether, particularly in light of the controversy over the will,5 any of the Laurino Plaintiffs intend to testify at the trial in this case, the court declines to rule on this request at this time. The United States may renew its request in the form of a motion in limine as appropriate. B. Request for Terminating Sanctions The United States has also requested imposition of terminating sanctions. Courts have the inherent power to dismiss an action where “a party has engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings.” Anheuser-Busch, Inc. v. Nat. Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 1995). Dismissal may be an appropriate sanction for falsifying a deposition, under Federal Rule of Civil Procedure 11, as a well as under the court’s inherent powers. Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488–89 (9th Cir. 1991) (“Counsel’s changes [to the deposition] dealt with issues of central importance in the upcoming summary judgment hearing . . . The mendacity of the client and the combined fraud and incompetence of his counsel are so egregious that there is no need to reach the merits of the motion for summary judgment. The case was properly dismissed.”). “Before imposing the harsh sanction of dismissal, the district court must weigh several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Anheuser-Busch, 69 F.3d at 348. The conduct to be sanctioned must be due to willfulness, fault, or bad-faith, and due process concerns require a relationship between the party’s misconduct and the matters in controversy ///// 5 Obviously, under these circumstances, at the very least serious concerns regarding the veracity such that the “transgression threaten[s] to interfere with the rightful decision of the case.” Id. (citations and quotation marks omitted). In support of their request for imposition of terminating sanctions, defendants argue that the false testimony in question undermines the integrity of these proceedings because it interferes with the determination of appropriate damages to be awarded by potentially inflating the Laurino Plaintiff’s damages and minimizing the Jurado Plaintiff’s damages. (Doc. No. 54-1 at 9.) The United States also contends it has been prejudiced by being “forced to expend significant resources directed to determining the authenticity of the handwriting in the will.” (Id. at 10.) In addition, now that the Laurino Plaintiffs have invoked their 5th Amendment rights in connection with this issue, the United States cannot fully develop the record related to the validity of the will. (Id.) The United States concedes, however, that consideration of a number of the factors relevant to the imposition of terminating sanctions weigh against the request, namely: the public interest favors disposition on the merits; lesser sanctions (including monetary sanctions and/or an adverse inference determination) can cure some of the prejudice. (Id. at 10–11.) The government asserts that the imposition of other sanctions will not address the fact that the Laurino Plaintiffs’ overall conduct “directly challenges the integrity of the judicial system.” (Id. at 11.) Ultimately, given the court’s conclusion set forth above that the validity of the will is not central to the disposition of this case, the court cannot conclude that false testimony about the will undermines the integrity of these proceedings. This is because there is no direct relationship between the party’s alleged misconduct and the matters placed in controversy by this action such that the “transgression threaten[s] to interfere with the rightful decision of the case.” Anheuser- Busch, 69 F.3d at 348. C. Plaintiffs’ Expert Disclosure In the context of mounting an opposition to the government’s motion, the Laurino Plaintiffs retained their own handwriting expert and (anticipating an objection) requested the court’s permission to present that expert’s report, even though the expert was disclosed after the relevant discovery deadline expired. (Doc. No 55 at 5.) Defendants have moved to strike that expert report. (Doc. No 58 at 12.) Because the court has not relied on that expert report in this order, it declines to rule on the request to allow late expert disclosure at this time. The court observes, however, that given the ongoing judicial emergency in this district and the length of time that is likely to pass before this matter can be tried, any prejudice stemming from the late disclosure may well be curable. For the reasons explained above: 1. Defendant motion requesting an adverse inference be drawn against the Laurino Plaintiffs (Doc. No. 54) is denied; 2. Defendant’s motion for imposition of terminating sanctions against the Laurino Plaintiffs (Doc. No. 54) is denied; and 3. The Laurino Plaintiffs’ request to present a handwriting expert disclosed after the deadline for doing so under the scheduling order (Doc. No. 55) and defendants’ motion to strike that report (Doc. No. 58) are denied as moot in connection with resolution of the pending motion and otherwise without prejudice to renewal. IT IS SO ORDERED. si □ '6 Dated: _ August 31, 2021 J aL Al 5 7 a UNITED STATES DISTRICT JUDGE 10